Copyright in the Age of User-Posted ContentPFF Releases Transcript of March Panel on Copyright Enforcement Mechanisms

WASHINGTON D.C. - The popularity of user-posted content on the Internet has highlighted many issues with current copyright law, including discrepancies in fair use interpretation and the lack of efficient copyright enforcement mechanisms. Who should assume responsibility for monitoring these sites for copyright infringement? Do current laws adequately protect the copyright holder while honoring fair use provisions? On March 16th, The Progress & Freedom Foundation gathered experts to discuss these and related issues at the congressional seminar, "What Goes Up Must Come Down: Copyright and Process in the Age of User-Posted Content." In light of the pending lawsuit between a major content company and a popular video hosting site, PFF is releasing a transcript of the event.

The panel, moderated by PFF Senior Fellow and Director of the Center for the Study of Digital Property James DeLong, featured perspectives from policy experts, web business owners and technologists . Participants included Christian Dawson, Business Manager of Sales & Marketing for ServInt Internet Services and Board Member, USIIA; Bill Rosenblatt, President of GiantSteps Media Technology Strategies and Managing Editor of DRMWatch; Solveig Singleton, Senior Adjunct Fellow at The Progress & Freedom Foundation; and Don Verrilli, Partner, Jenner & Block LLP. DeLong began the discussion by framing the debate. He explained that policymakers are faced with the difficult task of "trying to strike some sort of balance between protecting creators and ensuring a continuing flow of revenues to people who make content, on the one hand, and at the same time allowing for a free flow of that content over the Internet."

In her remarks, Solveig Singleton addressed the lack of efficient and appropriate enforcement mechanisms for digital content. "The utter inefficacy of the courts in enforcing IP online means that experiments with expanded liability and new enforcement mechanisms make sense in the larger picture as a direction in which we will continue to move at a policy level," she explained. "There are problems. We need to make sure that we preserve some of the symmetry of traditional enforcement mechanisms, and we need to learn to do fairness fast food style."

Lawyer Don Verilli discussed the recent suit brought against YouTube by Viacom for copyright infringement and identified an issue copyright law currently fails to address. "The real issue, I think, and the real bone of contention between Viacom and YouTube in the many months of negotiation and discussion that led up to this suit that the parties just weren't able to resolve is, where is the responsibility going to lie for policing and monitoring to prevent this infringement?"

Christian Dawson discussed how the complexity of Internet business models can obscure who bears the liability for infringement. Dawson explained that "as a web hosting provider, we often receive DMCA notifications. We are a responsible organization; we have a DMCA registered agent. We must look at [takedown notifications] and say, okay, actually, I have no idea what this website is on our network." He continued, "and so it goes down the line and we ship responsibility from person to person to person to person and that takes time under current circumstances."

Bill Rosenblatt weighed the technical issues and burden distribution surrounding takedown notices and filtering, two alternate copyright enforcement mechanisms. He stated that takedown notices are "expensive for the content owner. Its scalability is terrible. For the network operator, to respond manually to notice and takedown 512(c)(3) notices, it's not that expensive, but it's not all that scaleable either." Alternately, "on the filtering side, it's really cheap for the content owners," Rosenblatt explained. "On the network operator side, they are the ones who have to buy and maintain the technology, so it's more expensive for them."

Initial panel remarks were followed by discussion amongst the participants and questions from audience members. Complete statements from the panelists and questions from attendees can be found in the event transcript.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.